Ham banned from DMR network, sues in state court to regain access

[1234567890]

If that was all that was said, or if they had simply said "we need help defending against what we feel is a poorly thought out lawsuit" and had not had people posting links to their website, there probably wouldn't have been a problem. It's my understanding that, until a case is settled one way or another, you are not supposed to discuss anything related to it publicly, not even to mention any attempts to settle it and any counter offers made, even if you think your offer was fair and the counter offer wasn't.

Your understanding of this matter, much like your understanding of Part 97, is exceptionally off-base and just plain wrong.

 

[bill4long]

It's my understanding that, until a case is settled one way or another, you are not supposed to discuss anything related to it publicly, not even to mention any attempts to settle it and any counter offers made, even if you think your offer was fair and the counter offer wasn't.

Incorrect. The only time secrecy is required is when a judge presiding over a case issues a gag order.

That is exceptionally rare, and has not occurred in this case.

Even when a gag order is issued, it pertains to the parties involved, not the public.

 

[RFI-EMI-GUY]

I am hoping this case gets moved over to Peoples Court or Judge Judy!

 

[1234567890]

I noticed an update on the NCPRN message boards that is relevant. See here: PRN Forum • View topic - Lawsuit: Kenneth L Bryant v NCPRN, et al

The offer was made to allow him back on the network IF he agreed to not sell radios or promote his business in any way and drop the suit. He declined that offer and instead wanted a written response that would have destroyed repeater owners rights going forward. That was not acceptable so the lawsuit will continue.

 

[DaveNF2G]

No party to a case can base their complaint upon the actions of the uninvolved general public, even if members of the public might have an interest in the outcome. If the suit involves defamation, the accusation must be directed against the other party, not the people (including ham operators and un-named repeater owners) who are discussing the case in public fora.

 

[K2RNI]

While Ken may well "win" this frivolous law suit, he will go down in history as the "most hated amateur in the world" no matter the outcome. :evil:

Suing to get his access back only to make everyone never want to talk to him ever again in the process. Smooth move.

 

[TheSpaceMann]

Suing to get his access back only to make everyone never want to talk to him ever again in the process. Smooth move.

Oh he'll get people to talk to him, but their words may likely be deemed "obscene, profane, or indecent" by the FCC!!

 

[bill4long]

Oh he'll get people to talk to him, but their words may likely be deemed "obscene, profane, or indecent" by the FCC!!

"Profanity" is not in the rules anymore. Just FYI.

 

[TheSpaceMann]

"Profanity" is not in the rules anymore. Just FYI.

No kidding?
When did they take it out?

 

[SpugEddy]

If I may, I'd like to "dumb down" the original complaint and put it
into laymen terms that I understand.

My neighbor uses my lawn mower to cut his own grass because
he doesn't have the space to store his own. I've been complacent
with this for many years. My neighbor and I have no "written contract"
as to the use of my lawn mower and he is free to use it when he needs
to.
One day I find out that my neighbor has been using "MY" lawn mower
to cut somebody else's lawn and has been making a profit with it. As a
result, I now lock my garage and tell him that he is no longer welcome
to use my lawn mower. My neighbor takes me to court because I denied
him the use of my lawn mower without "due process".

This is my interpretation of what the original complaint was about. My
neighbor feels as though he in entitled to have a nice looking cut lawn.
And he is. But it does NOT have to be cut with my lawn mower. He is free
to use anybody else's mower or purchase his own. But because this "unwritten
agreement" has been in force for so many years now, I am obligated to give
him the benefit of the doubt and cannot deny him the privilege that I had afforded
him for so many years.

Am I on or off base here?

 

[N8OHU]

If I may, I'd like to "dumb down" the original complaint and put it
into laymen terms that I understand.

My neighbor uses my lawn mower to cut his own grass because
he doesn't have the space to store his own. I've been complacent
with this for many years. My neighbor and I have no "written contract"
as to the use of my lawn mower and he is free to use it when he needs
to.
One day I find out that my neighbor has been using "MY" lawn mower
to cut somebody else's lawn and has been making a profit with it. As a
result, I now lock my garage and tell him that he is no longer welcome
to use my lawn mower. My neighbor takes me to court because I denied
him the use of my lawn mower without "due process".

This is my interpretation of what the original complaint was about. My
neighbor feels as though he in entitled to have a nice looking cut lawn.
And he is. But it does NOT have to be cut with my lawn mower. He is free
to use anybody else's mower or purchase his own. But because this "unwritten
agreement" has been in force for so many years now, I am obligated to give
him the benefit of the doubt and cannot deny him the privilege that I had afforded
him for so many years.

Am I on or off base here?

Actually it's a case of a user finding out that the folks whose repeaters he was using don't think he should be able to do something that other users can do because those repeater owners interpret a regulation differently than most others do.

Sent from my XT1060 using Tapatalk

 

[SCPD]

SpugEddy: That's the exact same scenario that came to my mind.

 

[bill4long]

No kidding? When did they take it out?

In the last major revision.

Because of case law relative to Title 18 USC 1464, "profanity" is constitutionally protected speech, which means the FCC cannot take action against it in any medium, so there was no reason to keep it in Part 97. "Obscene" and "indecent" are retained:

97.113 Prohibited transmissions. (4) Music using a phone emission except as specifically provided elsewhere in this section; communications intended to facilitate a criminal act; messages encoded for the purpose of obscuring their meaning, except as otherwise provided herein; obscene or indecent words or language; or false or deceptive messages, signals or identification.

For a definition of "profane", "obscene" and "indecent" speech as it relates to broadcasting (that which is intended for the general public) see the FCC's page:

https://www.fcc.gov/consumers/guides/obscene-indecent-and-profane-broadcasts

The 2007 the Second Court of Appeals struck down part of the FCC's policies, particularly regarding "fleeting expletives." This may be helpful as it relates to Amateur Radio:

Court Rules FCC’s Indecency Policy Unconstitutional

 

[RFI-EMI-GUY]

If I may, I'd like to "dumb down" the original complaint and put it
into laymen terms that I understand.

My neighbor uses my lawn mower to cut his own grass because
he doesn't have the space to store his own. I've been complacent
with this for many years. My neighbor and I have no "written contract"
as to the use of my lawn mower and he is free to use it when he needs
to.
One day I find out that my neighbor has been using "MY" lawn mower
to cut somebody else's lawn and has been making a profit with it. As a
result, I now lock my garage and tell him that he is no longer welcome
to use my lawn mower. My neighbor takes me to court because I denied
him the use of my lawn mower without "due process".

This is my interpretation of what the original complaint was about. My
neighbor feels as though he in entitled to have a nice looking cut lawn.
And he is. But it does NOT have to be cut with my lawn mower. He is free
to use anybody else's mower or purchase his own. But because this "unwritten
agreement" has been in force for so many years now, I am obligated to give
him the benefit of the doubt and cannot deny him the privilege that I had afforded
him for so many years.

Am I on or off base here?

Right in target! Your sneaky neighbor is suing you because, although he mowed other peoples lawns with your mower and gas, he did so at "at a loss", he wants to be compensated for "lost profit" and the loss of business and professional embarrassment because his customers no longer see him pushing around YOUR shiny mower.

 

[N4GIX]

Actually it's a case of a user finding out that the folks whose repeaters he was using don't think he should be able to do something that other users can do because those repeater owners interpret a regulation differently than most others do.

I honestly do not see where there's any room for 'interpretation" here:

97.205(e) Limiting the use of a repeater to only certain user stations is permissible.

I own and operate a GMRS "Community" repeater that is open to any licensed GMRS operator and his/her family. I reserve the right granted by the FCC to deny access to any person should it prove necessary.

The only difference is that I have no effective means to enforce such a ban, whereas DMR repeater owners do have such means, at least in theory.

 

[bill4long]

Actually it's a case of a user finding out that the folks whose repeaters he was using don't think he should be able to do something that other users can do because those repeater owners interpret a regulation differently than most others do.

The FCC has consistently applied the ability to limit the use of repeaters in the broadest terms. FCC owners are free to exclude anyone they like for any reason or no reason at all. Period. (97.205e) Willfully ignoring a ban will be considered willful interference (97.101d) and not practicing good operating practice. (97.101a)

 

[Hans13]

I reserve the right granted by the FCC to deny access to any person should it prove necessary.

A small point with huge consequences... No government entity has the ability to grant rights. They can only confer privileges. Although the terms rights and privileges get thrown about interchangeably these days, they are not the same thing. The FCC may grant you the privilege but it has no more authority to grant you the right to do something than do I.

 

[Project25_MASTR]

A small point with huge consequences... No government entity has the ability to grant rights. They can only confer privileges. Although the terms rights and privileges get thrown about interchangeably these days, they are not the same thing. The FCC may grant you the privilege but it has no more authority to grant you the right to do something than do I.

True. However because the repeater owner...owns the repeater, it is their right to do with it as they please. Part 97 merely grants the privilege of the user to use the equipment as long as the owner allows it. The wording of the previous posting is not technically correct but the gist is...it is a privately owned item, the owner can do what he/she wants with it.

 

[Hans13]

True. However because the repeater owner...owns the repeater, it is their right to do with it as they please. Part 97 merely grants the privilege of the user to use the equipment as long as the owner allows it. The wording of the previous posting is not technically correct but the gist is...it is a privately owned item, the owner can do what he/she wants with it.

Oh, I wasn't arguing the validity of the right to control one's own property. My point was that the right is not conferred by the FCC. Because we take a license, yada yada yada, a privilege is defined by the FCC. However, the basics of property rights don't change. That wasn't the point of my reply. There are people out there who believe that government agencies grant individual rights. It's dangerous for our society and our culture to allow the distinction to disappear under the waves of misapplied terms.

 

[N4GIX]

Okay, I see your point. However, let's flip it around hypothetically. Suppose it had been written thusly:

97.205(x) Limiting the use of a repeater to only certain user stations is not permitted.

Written this way the FCC would be restricting my absolute pre-existing right to deny access.

As it is written however, the FCC is merely affirming my pre-existing right to deny access.